This week the Arizona Supreme Court heard oral arguments from a Maricopa County deputy attorney Susan Luder, arguing for the right to charge Arizona drivers who have ingested marijuana – in some cases months prior to driving – with a DUI.
It all stems from a December 2010 traffic stop for speeding and an unsafe lane change by Mr. Shilgevorkyan, the Appellant, who was subsequently taken to a County Sheriff’s command post where he consented to a blood test. It should be noted Arizona utilizes a very strict implied consent law which essentially penalizes refusing a blood alcohol test with an automatic twelve (12) month driver’s license suspension. That said, Appellant’s blood test eventually revealed approximately eight (8) Nano grams of Carboxy-Tetrahydrocannabinol (Carboxy-THC) State ex rel. Montgomery v. Harris ex rel. Cnty. of Maricopa, 301 P.3d 580, 581 (Ariz. Ct. App. 2013).
The Appellant was subsequently charged with violating Arizona law, A.R.S §28-1381(A)(3), which essentially makes it ”unlawful for a person to drive or be in actual physical control of a vehicle in this state … [w]hile there is any drug defined in section 13–3401 or its metabolite in the person’s body.” Id. Mr. Shilgevorkyan’s charges were later dismissed in Justice Court during an evidentiary hearing where the prosecution failed to convince the court the presence of marijuana metabolites could impair ones driving.
Later, the Maricopa County Superior court affirmed the Justice court’s ruling, where it determined the statute was ambiguous as to whether the term “metabolite” was meant to be plural or singular. In doing so, the court ruled that the “[s]tate had not shown “the legislature necessarily intended to include all possible derivatives of drugs—particularly inactive end products that no longer affect an individual.” Id.
The State could not let sleeping dogs lie where they lay and appealed the ruling to the Arizona Court of Appeals. The Court of Appeals stuck to the strict language of State v. Hammonds, citing Stave v. Phillips ,determining that AZ’s strict DUI “statute created a flat ban on driving with any proscribed substance in the body, whether capable of causing impairment or not.” Id. at 582. The court even followed up with case-law allowing courts to construe statutory language plurally where it would “enable the court to carry out legislative intent.” Id at 583.
According to Capital Media Services Reporter, Howard Fischer, the deputy County Attorney was unable to dispute the County’s own expert witness who agreed with Appellant that the presence of marijuana metabolite would not indicate if someone is impaired or not. The attorney for the Appellant, Michael Alarid, said that the ruling would essentially ban driving by anyone with trace amounts of Carboxy-THC in their blood, and noted it would be an “absurd result.” The Supreme Court Justices gave no clear indication on which way they were leaning.
Arizona already, argubly, has some of the toughest DUI laws in the United States. There is no public policy need or conern to make them even tougher. Arizona is known for its libertarian spirit, the notion that government should remain as least intrusive as possible. However, here, the law as applied, would make what you do in the privacy of your home weeks before entering the public doman, a concern of the State. This logic flies in the face of free spirit in Arizona.
This case involves two sides, the Arizona Legislature and the Arizona Supreme Court. The AZ legislature, in their infinite wisdom, left the language overly inclusive. It is now up to the Supreme Court to narrow the broad net cast by Arizona Legislature’s oversight. We can only hope our states Supreme Justices can reign in some of the hypocrisy that has come out of Arizona the past few years which undoubtedly winds its way up to the United States Supreme Court docket. Think SB1070! Let’s all do our part in keeping Arizona out of the national news for more silliness. All eyes are on the Supreme Court!
